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Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,
Cynthia L. Crosby
Acting Chief Clerk
Enclosure
Panel Members:
Creppy, Michael J.
Liebowitz, Ellen C
Mullane, Hugh G.
Userteam: Docket
Cite as: S-D-, AXXX XXX 230 (BIA April 26, 2017)
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APPEAL
CHARGE:
The respondent, a native and citizen of India, who was admitted to the United States as an
immigrant in 1976, appeals from an Immigration Judge's decision dated June 26, 2015, denying
his application for withholding of removal and protection under the Convention Against
Torture ("CAT''). See section 24l(b)(3)(A) of the Immigration and Nationality Act ("Act"),
8 U.S.C. 123l(b)(3)(A); 8 C.F.R. 1208.16(c). The respondent also argues that he is no
longer removable as charged. The appeal will be sustained and the proceedings will be
terminated.
On appeal, the respondent argues that, based on recent case law, his 1999 conviction for
grand theft by embezzlement in violation of Cal. Penal Code 487 is not for an aggravated
felony and he is no longer removable under section 237(a)(2)(A)(iii) of the Act, 8 U.S.C.
1227(a)(2)(A)(iii). He further argues that he has demonstrated his eligibility for withholding of
removal and protection under the CAT. The respondent was first found removable for having
been convicted of an aggravated felony in an Immigration Judge's decision dated March l, 2001.
This Board summarily affirmed this decision on June 22, 2001, and denied the respondent's
motion to reconsider whether his crime was an aggravated felony in a decision dated
1 The respondent's name appears throughout the record with Srinivasan as his family name. Our
heading reflects the name as it appears on the Notice to Appear (Exh. 1).
Cite as: S-D-, AXXX XXX 230 (BIA April 26, 2017)
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September 19, 2001. A California Federal District Court granted the respondent's habeas
petition to allow him to apply for relief, but on December 12, 2004, the United States Court of
Appeals for the Ninth Circuit vacated the decision. Srinivasan v. Fasano, 68 F. App'x. 127 (9th
Cir. 2003). On June 2, 2005, we remanded the record to the Immigration Judge for further fact
finding and for the respondent to apply for relief. At the remanded hearing, the respondent
indicated that the only relief for which he was applying was withholding of removal and
We first address the status of the respondent's conviction for grand theft by embezzlement
under Cal. Penal Code 487, as an aggravated felony. 2 Although the respondent conceded his
conviction was for an aggravated felony theft crime under section 101(a)(43)(G) of the Act, there
has significant intervening precedent. In particular, in Lopez-Valencia v. Lynch, 798 F.3d 863
(9th Cir. 2015), the court found that Cal. Penal Code 484, which defines theft for purposes of
Cal. Penal Code 487, is overbroad as it includes crimes that are and are not theft crimes for
aggravated felony purposes. Lopez-Valencia v. Lynch, supra, at 868-70. The court further found
that the statute is not divisible, as it lists various means of committing the crime, but not different
elements. Id. Also, since the time of the respondent's concessions and earlier decisions in this
case, the Supreme Court has provided additional guidance on what constitutes a divisible statute.
See Mathis v. United States, 136 S.Ct. 2243 (2016). Based on the reasoning of the Ninth Circuit,
we agree the statute is overbroad and not divisible. Therefore the crime cannot be found to be an
aggravated felony and the proceedings will be terminated.
The respondent was convicted of grand theft by embezzlement under Cal. Penal Code 487,
which provides:
Grand theft is theft committed in any of the following cases:(a) When the money,
labor, or real or personal property taken is of a value exceeding nine hundred fifty
dollars ($950), except as provided in subdivision (b).
(a) Every person who shall feloniously steal, take, carry, lead, or drive away the
personal property of another, or who shall fraudulently appropriate property
which has been entrusted to him or her, or who shall knowingly and designedly,
by any false or fraudulent representation or pretense, defraud any other person of
money, labor or real or personal property, or who causes or procures others to
2 On November 22, 2016, we requested supplemental briefing on this issue and both parties have
responded.
2
Cite as: S-D-, AXXX XXX 230 (BIA April 26, 2017)
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report falsely of his or her wealth or mercantile character and by thus imposing
upon any person, obtains credit and thereby fraudulently gets or obtains
possession of money, or property or obtains the labor or service of another, is
guilty of theft. In determining the value of the property obtained, for the purposes
of this section, the reasonable and fair market value shall be the test, and in
determining the value of services received the contract price shall be the test. If
In Lopez-Valencia v. Lynch, supra, the Ninth Circuit held that Cal. Penal Code 484
includes both crimes that are aggravated felony theft crimes under a generic definition of
theft and those that are not. For example, the court noted the California statute criminalizes
theft of labor and services, as well as theft by false pretenses, which do not meet the generic
definition. Id at 868. Generic theft is generally considered to require: 1) a taking of property
or an exercise of control over property; 2) without consent; and 3) with the criminal intent
to deprive the owner of rights and benefits of ownership, even if less than total or permanent.
Gonzales v. Duenas-Alvarez, 127 S. Ct. 815, 820 (2007); Matter of Garcia-Madruga, 24 I&N
Dec. 436, 438 (BIA 2008). The Ninth Circuit further observed that although the statute
provides various means of committing theft, it is not divisible into various elements. Lopez
Valencia v. Lynch, supra, at 869. The respondent argues that this assessment should control the
outcome of his case.
While the Department of Homeland Security ("OHS") does not argue the statute is not
divisible, it notes that this case arises within the jurisdiction of the Sixth Circuit Court of Appeals
and we are not bound by the precedent decision Lopez-Valencia v. Lynch, supra, concerning the
breadth of the statute. It further argues that the Board has been using too broad a definition of
"consent" in our interpretation of theft and that under a more modem and appropriate definition
of theft all of the acts listed in Cal. Penal Code 484 are theft crimes.
The Board has held that a fraud crime is distinguishable from a theft crime. Matter of
Garcia-Madgruda, supra. We found that, while both crimes require the taking of property with
the intent to deprive the owner of the rights and benefits of ownership, theft requires the lack of
consent on the part of the victim. Id at 438. The OHS argues that we should define consent
more narrowly to include only "knowing and voluntary consent" (OHS Supp. Br. at 15), as,
under this definition, fraud crimes would be considered theft. In support of its argument, the
OHS discusses the history of theft at common law and, in particular, notes that, in 1927,
California joined other states in combining crimes such as larceny, false pretenses and
Cite as: S-D-, AXXX XXX 230 (BIA April 26, 2017)
230
embezzlement into the theft definition (DHS Supp. Br. at 11-12). The OHS notes that these
changes are also part of the Model Penal Code (Id. at 12-13) and that without limiting the
definition of consent to include only knowing and voluntary consent, many state theft crimes
would not be considered aggravated felonies under section l0l(a)(43)(G) of the Act.
While we share the DHS's concerns regarding the possible limiting of the application of the
As we continue to apply these precedent decisions and, in line with their interpretation of
theft, we agree with the Ninth Circuit, that Cal. Penal Code 484 is overbroad, such that it can
be violated both by crimes that are considered theft and those that are not.3 Furthermore, the
statute is not divisible as it defines various means by which theft can be committed, but does not
provide separate elements that must be found by a jury. See Mathis, supra; Descamps, supra;
Lopez-Valencia, supra, at 869, citing, inter a/ia, People v. Nor Woods, 223 P.2d 897, 898
(Ca. 1951) (determination of which "pidgeonhole" the theft crime fell into is not material to
jury). Accordingly, the following order will be entered.
3 The OHS further argues that the taking of intangible items, like labor or services, included
under the California law, should also be considered theft under the generic definition. See
Lopez-Valencia, supra, at 868. As we find Cal Penal Code 484 overbroad concerning the
consent issue discussed above, we need not address this issue at this time. See INS
v. Bagamasbad, 429 U.S. 24, 25-26 (1976) (as a general rule, courts and agencies are not
required to make findings on issues the decision of which is unnecessary to the result they reach).
Cite as: S-D-, AXXX XXX 230 (BIA April 26, 2017)
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Cite as: S-D-, AXXX XXX 230 (BIA April 26, 2017)
(
IMMIGRATION COURT
801 W. SUPERIOR AVE, STE13-100
CLEVELAND, OH 44113
OTHER:
IMMIGRATION COURT FF
CC: Tripi, Esq., Michael
1240 East Ninth St., Ste 519
Cleveland, OH, 44199
-.
IMMIGRATION COJR
801 W. SUPERIOR AVE, STE13-100
CLEVELA...D, OH 44113
In the Matte of
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ORDER OF THE IMMIGRATION JUDGE
--,
L!SON M. BROWN
Inunigratio Judge
Appea (
Waive peal Duo By:
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